sources of fundamental rights

36. All human beings are endowed at birth, with certain inalienable rights and among such rights are right to life and liberty, including liberty of thought and expression. These rights have been recognized as 73 inalienable rights, having regard to the supreme value of human personality. Incidentally, some of such rights have come to be Constitutionally recognized under Part III of the Constitution of India. Fundamental Rights were selected from what were previously natural rights and were later termed as common law rights. However, it is to be noted that Part III of the Constitution, is not the sole repository of such rights. Even after some of such inalienable rights have come to be Constitutionally recognised as Fundamental Rights under the Constitution of India, the congruent rights under common law or natural law have not been obliterated. It also follows, that the corresponding remedies available in common law, are also not obliterated. The object of elevating certain natural and common law rights, as Fundamental Rights under the Constitution was to make them specifically enforceable against the State and its agencies through a Courts of law. These observations gain legitimacy from the judgment of Mathew, J. in His Holiness Kesavanada Bharati Sripadagalvaru vs. State of Kerala, (1973) 4 SCC 225 (Kesavanada Bharati) wherein His Lordship recognized the object of Constitutions to declare recognised natural rights as applicable qua the state. Adopting the picturesque language of Roscoe Pound, the following observations were made: “1514. While dealing with natural rights, Roscoe Pound states on page 500 of Vol. I of his Jurisprudence: 74 “Perhaps nothing contributed so much to create and foster hostility to courts and law and Constitutions as this conception of the courts as guardians of individual natural rights against the state and against society; this conceiving of the law as a final and absolute body of doctrine declaring these individual natural rights; this theory of Constitutions as declaratory of commonlaw principles, which are also natural-law principles, anterior to the state and of superior validity to enactments by the authority of the state; this theory of Constitutions as having for their purpose to guarantee and maintain the natural rights of individuals against the government and all its agencies. In effect, it set up the received traditional social, political, and economic ideals of the legal profession as a super-Constitution, beyond the reach of any agency but judicial decision. 1515. I may also in this connection refer to a passage on the inherent and inalienable rights in A History of American Political Theories by C. Marriam: By the later thinkers the idea that men possess inherent and inalienable rights of a political or quasi-political character which are independent of the state, has been generally given up. It is held that these natural rights can have no other than an ethical value, and have no proper place in politics. There never was, and there never can be,' says Burgess, 'any liberty upon this earth and among human beings, outside of state organization'. In speaking of natural rights, therefore, it is essential to remember that these alleged rights have no political force whatever, unless recognized and enforced by the state. It is asserted by Willoughby that 'natural rights' could not have even a moral value in the supposed 'state of nature'; they would really be equivalent to force and hence have no ethical significance. (see p. 310).” x x xx x x x “1522. I am also of the view that the power to amend the provisions of the Constitution relating to the fundamental rights cannot be denied by describing 75 the fundamental rights as natural rights or human rights. The basic dignity of man does not depend upon the codification of the fundamental rights nor is such codification a prerequisite for a dignified way of living. There was no Constitutional provision for fundamental rights before January 26, 1950 and yet can it be said that there did not exist conditions for dignified way of living for Indians during the period between August 15, 1947 and January 26,. 1950. The plea that provisions of the Constitution, including those of Part III, should be given retrospective effect has been rejected by this Court. Article 19 which makes provision for fundamental rights, is not applicable to persons who are not citizens of India. Can it, in view of that, be said that the non-citizens cannot while staying in India lead a dignified life? It would, in my opinion, be not a correct approach to say that amendment of the Constitution relating to abridgement or taking away of the fundamental rights would have the effect of denuding human beings of basic dignity and would result in the extinguishment of essential values of life.” [Emphasis by me] 37. This proposition was further highlighted in the enlightened minority opinion of His Lordship, H.R. Khanna, J, in Additional District Magistrate, Jabalpur vs. Shivakant Shukla, A.I.R. 1976 SC 1207 (“ADM Jabalpur”) wherein while refusing to subscribe to the view that when the right to enforce Fundamental Right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law, observed, that Article 21 was not the sole repository of the right to life and personal liberty. That such rights inhered in men even prior to the enactment of 76 the Constitution, and were not created for the first time by enacting the Constitution. It was also recognised that though the Constitutionally recognised remedy under Article 32, for infringement of the Right under Article 21 may not be available as the said rights remained suspended or notionally surrendered on account of declaration of an Emergency, remedies under the laws which were in force prior to the coming into effect of the Constitution would still operate to ensure that no person could be deprived of his life or liberty except in accordance with law. In that context, it was held that the rights Constitutionally recognised under Article 21, represented ‘higher values’ which were elementary to any civilised State and therefore the sanctity of life and liberty was not traceable only to the Constitution. The relevant portions of His Lordship’s judgment can be usefully extracted hereinunder: “152. The effect of the suspension of the right to move any court for the enforcement of the right conferred by Article 21, in my opinion, is that when a petition is filed in a court, the court would have to proceed upon the basis that no reliance can be placed upon that Article for obtaining relief from the court daring the period of emergency. Question then arises as to whether the rule that no one shall be deprived of ins life or personal liberty without the authority of law stiff survives during the period: of emergency despite the Presidential order suspending the right to move any court for the enforcement of the-right contained in Article 21. The answer to this question is linked with the answer to the question as to whether Article 21 is, the sole repository of the right to life and personal liberty. After giving the matter my earnest consideration, I am of the opinion that Article 21 cannot be considered" to be the sole repository of the right to life and; personal liberty. The right to life, and personal: liberty is the most precious 77 right of human beings in civilised societies governed by the rule of law. Many modern constitutions incorporate certain fundamental rights, including the one relating to personal freedom.” xxx “155. Sanctity of life and liberty was not something new when the Constitution was drafted. It represented a fact of higher values which mankind began to cherish in its evolution from a state of tooth and claw to a civilized existence. Likewise, the principle that no one shall be deprived of ins life and liberty without the authority of law was not the gift of the Constitution. It was a necessary corollary of the concept relating to the sanctity of life and liberty; it existed and was in force before the coming into force, of the Constitution. The idea about the sanctity of life and liberty as well as the principle that no one shall be deprived of his life and liberty without the authority of law are essentially two facets of the same concept. This concept grew and acquired dimensions in response to the inner urges and nobler impulses with the march of civilisation. Great writers and teachers, philosophers and political thinkers nourished and helped in the efflorescence of the concept by rousing the conscience of mankind and by making it conscious of the necessity of the concept as necessary social discipline in self-interest and for orderly existence. According even to the theory of social compact many aspects of which have now been discredited, individuals have surrendered a part of their theoretically unlimited freedom in return or the blessings of the government. Those blessings include governance in accordance with certain norms in the matter of life and liberty of the citizens. Such norms take the shape of the rule of law. Respect for law, we must bear in mind, has a mutual relationship with respect for government. Erosion of the respect for law, it has accordingly been said, affects the respect for the government. Government under the law means, as observed by Macdonald, that the power to govern shall be exercised only, under conditions laid down in constitutions and laws approved by either the people or their representatives. Law thus emerges as a norm limiting the application of power by the government 78 over the citizen or by citizens over their fellows. Theoretically all men are equal before the law and are equally bound by it regardless of their status, class, office or authority. At the same time that the law enforces duties it also protects rights, even against the sovereign.” x x x 158. I am unable to subscribe to the view that when right to enforce the right under Article 21 is suspended, the result would be that there would be no remedy against deprivation of a person's life or liberty by the State even though such deprivation is without the authority of law or even in flagrant violation of the provisions of law. The right not to be deprived of one's life or liberty without the authority of law was not the creation of the Constitution. Such right existed before the Constitution came into force. The fact that the framers of the Constitution made an aspect of such right a part of the fundamental rights did not have the effect of exterminating the independent identity of such right and of making Article 21 to be the sole repository of that right. Its real effect was to ensure that a law under which a person can be deprived of ins life or personal liberty should prescribe a procedure for such deprivation or, according to the dictum laid down by Mukherjea, J. in Gopalan's case, such law should be a valid law not violative of fundamental rights guaranteed by Part III of the Constitution. Recognition as fundamental right of one aspect of the pre-Constitutional right cannot have the effect of making things less favourable so far as the sanctity of life and personal liberty is concerned compared to the position if an aspect of such right had not been recognised as fundamental right because, of the vulnerability of fundamental rights accruing from Article 359. I am also unable to agree that in view of the Presidential Order in the matter of sanctity of life and liberty, things would be worse off compared to the state of law as it existed before the coining into force of the Constitution.” x x x 79 “162. It has been pointed out above that even before the coming into force of the Constitution, the position under the common law both in England and in India was that the State could not deprive a person of ins life and liberty without the authority of law. The same was the position under the penal laws of India. It was an offence under the Indian Penal Code, as already mentioned, to deprive a person of ins life or liberty unless such a course was sanctioned by the laws of the land. An action was also maintainable under the law of torts for wrongful confinement in case any person was deprived of ins personal liberty without the authority of law. In addition to that, we had Section 491 of the CrPC which provided the remedy of habeas corpus against detention without the authority of law. Such laws continued to remain in force in view of Article 372 after the coming into force of the Constitution. According to that article, notwithstanding the repeal by this Constitution of the enactments referred to in Article 395 but subject to the other provisions of this Constitution, all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other competent authority. The law in force, as observed by the majority of the Constitution Bench in the case of Director of Rationing and Distribution v. The Corporation of Calcutta and Ors. 1960 CriLJ 1684, include not only the statutory law but also custom or usage haying the force of law as also the common law of England which, was adopted as the law of the country before the coming into force of the Constitution. The position thus seems to be firmly established that at the time, the Constitution came into force, the legal position was that no one could be deprived of ins life or liberty without the- authority of law. 163. It is difficult to accede to the contention that because of Article 21 of the Constitution, the law which was already in force that no one could be deprived of ins life or liberty without the authority of law was obliterated and ceased to remain in force. No rule of construction interpretation warrants such an inference. Section 491 of the CrPC continued to remain an integral part of that Code despite the fact that the High Courts were 80 vested with the power of issuing writs of habeas corpus under Article 226. No submission was ever advanced on the score that the said provision had become a dead letter of enforceable because of the fact that Article 226 was made a part of the Constitution, indeed, in the case of Makhan Singh (supra) Gajendragadkar J. speaking for the majority stated that after the coming into force of the Constitution, a party could avail of either the remedy of Section 491 of the CrPC or that of Article 226 of the Constitution. The above observations clearly go to show that constitutional recognition of the remedy of writ of habeas corpus did not obliterate or abrogate the statutory remedy of writ of habeas corpus. Section 491 of the CrPC continued to be part of that Code till that Code was replaced by the new Code. Although the remedy of writ of habeas corpus is not now available under the new CrPC, 1973, the same remedy is still available under Article 226 of the Constitution.” [Emphasis by me] In holding thus, H.R. Khanna, J. refused to subscribe to the majority view in the said case that once a right is recognised and embodied in the Constitution and forms part of it, it could not have any separate existence apart from the Constitution, unless it were also enacted as a statutory principle by some positive law of the State. His Lordship rejected the proposition that the intention of the Constitution was not to preserve something concurrently in the field of natural law or common law; it was to exclude all other control or to make the Constitution the sole repository of ultimate control over those aspects of human freedom which were guaranteed therein. 38. The strength of H.R. Khanna, J’s minority opinion was subsequently acknowledged and affirmed by this Court in 81 Puttaswamy, wherein it was held that the rights to life and personal liberty were ‘primordial rights’ and were not bounties which were conferred by the State and created by the Constitution. That the right to life existed even before the advent of the Constitution and in recognising such right, the Constitution did not become the sole repository of such rights. That every constitutional democracy including our country, is rooted in an undiluted assurance that the Rule of law will protect their rights and liberties against any invasion by the State and that judicial remedies would be available when a citizen has been deprived of most precious inalienable rights. Dr. D.Y. Chandrachud. J. (as His Lordship then was) enunciated the aforesaid principles in the following words: “119. The judgments rendered by all the four judges constituting the majority in ADM Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence. These rights are, as recognised in Kesavananda Bharati, primordial rights. They constitute rights under natural law. The human element in the life of the individual is integrally founded on the sanctity of life. Dignity is associated with liberty and freedom. No civilized state can contemplate an encroachment upon life and personal liberty without the authority of law. Neither life nor liberty are bounties conferred by the state nor does the Constitution create these rights. The right to life has existed even before the advent of the Constitution. In recognising the right, the Constitution does not become the sole repository of the right. It would be preposterous to suggest that a democratic Constitution without a Bill of Rights would leave individuals governed by the state without either the existence of the right to live or the means of enforcement of the right. The right to life being inalienable to each individual, it existed prior to 82 the Constitution and continued in force Under Article 372 of the Constitution. Justice Khanna was clearly right in holding that the recognition of the right to life and personal liberty under the Constitution does not denude the existence of that right, apart from it nor can there be a fatuous assumption that in adopting the Constitution the people of India surrendered the most precious aspect of the human persona, namely, life, liberty and freedom to the state on whose mercy these rights would depend. Such a construct is contrary to the basic foundation of the Rule of law which imposes restraints upon the powers vested in the modern state when it deals with the liberties of the individual. The power of the Court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the Rule of law. 120. A constitutional democracy can survive when citizens have an undiluted assurance that the Rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights. The view taken by Justice Khanna must be accepted, and accepted in reverence for the strength of its thoughts and the courage of its convictions.” [Emphasis by me] 39. What emerges from the aforesaid decisions of this Court, may be culled out as follows: i) That some natural/primordial rights of man have been accorded a secure position under the Constitution so as to protect such rights against undue encroachments by organs of State. The object of elevation of such common law rights/natural rights to the Constitutional plane was to make them specifically enforceable against the State and its agencies through Courts of Law. 83 ii) Notwithstanding that such rights have been placed in Part III of the Constitution of India, the rights are concurrently preserved in the field of natural law or common law. Remedies available in common law for actualising such rights are also preserved. There are therefore two spheres of rights, and corresponding remedies: first, relatable to the Fundamental Rights enshrined under Part III the Constitution of India, which correspond to the remedies under Article 32 and Article 226 of the Constitution of India; second, inalienable/natural/common law rights, which are preconstitutional rights, and may be protected by having recourse to common law remedies.